by JOEL B. POLLAK 8 May 2017
Former Acting Attorney General Sally Yates, testifying in the Senate on Monday, attempted to defend her decision to defy President Donald Trump’s executive order suspending travel from several terror-prone countries in January.
Yates told the Senate Judiciary Committee that her decision was made “not purely as a policy matter,” but suggested that she had been guided by “statements” that were made “contemporaneously or prior” to the order.
She did not specify which statements she meant, but several of the judges who have blocked the executive order — and its less ambitious successor — have referred to statements made by Trump on the campaign trail about a “Muslim ban.”
Under questioning, Yates admitted that “people of goodwill can make different decisions about this” — having just argued, moments before, that the conclusion of the Department of Justice’s Office of Legal Counsel was so wrong that it had to be overruled.
Sen. John Cornyn (R-TX) was the first to question Yates:
Cornyn: Ms. Yates, this is the first time that you’ve appeared before Congress since you left the Department of Justice, and I just wanted to ask you a question about your decision to refuse to defend the president’s executive order. In the letter that you sent to Congress, you point out that the executive order itself was drafted in consultation with the Office of Legal Counsel, and you point out that the Office of Legal Counsel reviewed it to determine whether, in its view, the proposed executive order was lawful on its face, and properly drafted. Is it true that the Office of Legal Counsel did conclude it was lawful on its face, and properly drafted?
Yates: Yes, they did. The Office of —
Cornyn: And you overruled them?
Yates: I did. The Office of Legal —
Cornyn: What is your authority to overrule the office of legal counsel whether it comes to a legal determination?
Yates: The Office of Legal Counsel has a narrow function and that is to look at the face of an executive order to determine purely on its face whether there is some set of circumstances under which at least some part of the executive order may be lawful. And, importantly, they do not look beyond the face of the executive order, for example, at statements that are made contemporaneously or prior to the execution of the E.O. that may bear on its intent and purpose. That office does not look at those factors. And in determining the constitutionality of this executive order, that was an important analysis to engage in, and one that I did.
Cornyn: Well, Ms. Yates, I thought the Department of Justice had a long-standing tradition of defending a presidential action in court if there are reasonable arguments in its favor regardless whether they may prove to be ultimately persuasive — which, of course, is up to the courts to decide and not you, correct?
Yates: It is correct, but not often times, but not always, the Civil Division of the Department of Justice will defend an president or an action of Congress if there is a reasonable argument to be made. But in this instance, all arguments have to be based on truth. Because we’re the Department of Justice. We’re not just a law firm. We’re the Department of Justice.
Cornyn: You distinguish “the truth” from “lawful”?
Yates: Yes, because in this instance, in looking at what the intent was of the executive order, which was derived, in part, from an analysis of facts outside the face of the order, that is part of what led to our conclusion that it was not lawful, yes.
Cornyn: Well, Mrs. Yates, you had a distinguished career for 27 years at the Department of Justice. And I voted for your confirmation because I believe you had a distinguished career. And I have to tell you that I find it enormously disappointing that you somehow vetoed the decision of the Office of Legal Counsel with regard to the lawfulness of the president’s order, and decided instead that you would countermand the executive order of the President of the United States because you happen to disagree with it as a policy matter. I just have to say that.
Yates: I appreciate that, Senator. And let me make one thing clear. It was not purely as a policy matter. And in fact, I remember my confirmation hearing. And in an exchange that I had with you, and others of your colleagues, where you specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional, and one of your colleagues — or even that would reflect poorly on the Department of Justice, would I say no? And I looked at this. I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with the principles of the Department of Justice. And I said no. And that’s what I promised you I would do. And That’s what I did.
Sen. Dick Durbin (D-IL) rode to Yates’s rescue, citing three federal courts that had agreed with Yates, blocking the executive order on the grounds that it was improperly motivated by religious discrimination.
Durbin did not mention, however, that a federal judge in Boston had declined to block the executive order, ruling that the president was well within his authority, and that the order satisfied the legal standard of “rational basis” review:
Here, the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks.
Under questioning from Sen. Ted Cruz (R-TX), Yates said that the statute authorizing Trump’s executive order was superseded by a later statute prohibiting religious discrimination, and that the fundamental issue was the constitutionality of the order.
Cruz replied that the Department of Justice’s Office of Legal Counsel (OLC) had reviewed the executive order for its lawfulness. Yates said she was not convinced that the order was lawful, and she had to look “outside the face of the document.”
“It was appropriate for us to look at the intent behind the president’s actions,” Yates said.
Later, however, she allowed: “People of goodwill can make different decisions about this.” How that squared with her earlier argument that arguments in favor of the executive order were not based on truth, she did not explain.
Sen. John Kennedy (R-LA) asked her to clarify, and Yates said that she would have had to argue that the intent had not been discriminatory, which she did not believe that she could do. Sen. Kennedy then asked whether she would have declined to defend an act of Congress that used exactly the same language, and she said yes.
She cited the previous example of the Department of Justice declining to defend the Defense of Marriage Act. Sen. Kennedy pointed out that that had been a political decision.
“Who appointed you to the United States Supreme Court?” Kennedy asked.
BOOMSen Kennedy to #SallyYates: “Who appointed you to the Supreme Court?”
Then, watch Sally look for help @ end! pic.twitter.com/yFFxR0F3Hp
— BostonBobblehead (@DBloom451) May 8, 2017
Yates also did not explain why she had chosen to veto the executive order, rather than resigning. President Trump later fired her.
Update: Left-wing websites and social media are celebrating Yates’s exchange with Cruz, as if she “schooled” him. Yates cited the non-discrimination provisions of the Immigration and Nationality Act of 1965, which has never been interpreted to overrule the president’s broad authority under 8 U.S.C. 1182(f) to determine immigration policy — a statute that Yates failed to name when Cruz asked her about it, yet which is central to the executive order.